United States v. Jones

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 24, 2008 Decided June 9, 2009

No. 07-3070

UNITED STATES OF AMERICA,
APPELLEE

v.

DUANE PHILLIP JONES, ALSO KNOWN AS CHICKEN JONES,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 06cr00273-01)

Mary E. Davis, appointed by the court, argued the cause and
filed the briefs for appellant.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese III, Mary B. McCord, and
Michael T. Ambrosino, Assistant U.S. Attorneys.

Before: ROGERS, GARLAND, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge GARLAND.
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GARLAND, Circuit Judge: A jury convicted Duane Phillip
Jones of gun and drug crimes. Jones contends that he is entitled
to a new trial for two reasons. First, he argues that the district
court erred in failing to suppress a statement he made at the time
of his arrest. Second, he maintains that the government
improperly disclosed inadmissible information to the jury. We
find no error on either ground, and we therefore affirm Jones’
convictions.

I

The facts surrounding Jones’ arrest are not in dispute. The
Superior Court of the District of Columbia issued a warrant for
Jones on a charge of first-degree murder while armed, in
connection with a homicide that took place on June 27, 2006.
At a law enforcement briefing held on August 10, 2006, Deputy
U.S. Marshal James Cyphers learned that the murder had been
committed with a handgun; that Jones might possess two
firearms because the victim’s gun was taken during the murder;
and that Jones had previous convictions for gun and drug
offenses.

On the afternoon of August 10, Cyphers and approximately
twenty other members of the U.S. Marshals Service Fugitive
Task Force converged on the Clay Terrace area in northeast
Washington, D.C., in search of Jones. Clay Terrace, which
Cyphers characterized as “an open-air drug market” and “a very
dangerous part of the city,” was filled with people, some of
whom fled when the marshals arrived. Mot. Hr’g Tr. 6-7, 20
(Jan. 16, 2007). As Cyphers got out of his vehicle, he made eye
contact with Jones, who stood up and turned “frantic[ally]” in
circles. Id. at 21. Jones then took off running, and Cyphers
chased him for approximately 100 yards. During the chase,
Cyphers heard a gunshot fired somewhere to his left. Jones
eventually ran into the stairwell of an apartment building;
 3

moments later, two small children emerged from the stairwell.
Cyphers pursued Jones into the stairwell, which was semi-lit,
and finally apprehended Jones there by grabbing him around the
waist and pulling him to the ground. Jones, who was wearing a
bulky jacket, landed on his stomach.

Within thirty seconds of apprehending Jones, and before
administering Miranda warnings, Cyphers asked Jones whether
he had “anything on” him. Id. at 12. Jones replied, “I have a
burner in my waistband,” which Cyphers understood to mean a
gun. Id. at 13. Another deputy marshal then recovered a loaded
firearm from Jones’ waistband. Jones was handcuffed and
escorted to a police car, where a third deputy marshal conducted
a pat-down search and discovered a bag containing crack
cocaine in Jones’ back pocket.

On September 15, 2006, a grand jury indicted Jones on
three counts: possession with intent to distribute five grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii); possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and
unlawful possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). Before trial, Jones
moved to suppress his statement regarding the gun on the
ground that it was obtained in contravention of the Supreme
Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966).
After listening to Cyphers’ testimony at the suppression hearing,
the district court denied the motion to suppress, concluding that
Jones’ statement fell within the public safety exception to
Miranda. See New York v. Quarles, 467 U.S. 649 (1984).

At trial, Cyphers and other deputy marshals testified about
the circumstances surrounding Jones’ arrest, including the
statement Jones made about the gun. Jones did not testify or call
any witnesses. On January 24, 2007, the jury convicted him on
 4

all counts. The district court sentenced Jones to a term of 135
months’ incarceration on the first count, a consecutive term of
60 months’ incarceration on the second count, and a concurrent
term of 120 months’ incarceration on the third count. Jones now
raises two challenges to his convictions and also seeks a remand
for resentencing under a retroactive amendment to the
Sentencing Guidelines.

II

Jones’ first contention is that the district court erred in
denying his motion to suppress his statement concerning the
gun. Statements made in response to custodial interrogation are
normally inadmissible unless preceded by Miranda warnings.
See Miranda, 384 U.S. at 444-45. In New York v. Quarles,
however, the Supreme Court announced a “‘public safety’
exception” to the Miranda rule. 467 U.S. at 655-56. In Quarles,
police officers followed the defendant into a supermarket after
a rape victim told them that her attacker had just entered the
store carrying a gun. When the defendant noticed one of the
officers, he turned and ran toward the rear of the store. The
officer eventually caught the defendant, frisked him, and
discovered that he was wearing an empty shoulder holster.
After handcuffing the defendant, but before advising him of his
rights, the officer asked him where the gun was, and the
defendant responded, “the gun is over there.” Id. at 652.

Concluding that, “under the circumstances involved[,] . . .
overriding considerations of public safety justif[ied] the officer’s
failure to provide Miranda warnings before he asked questions
devoted to locating the abandoned weapon,” the Court held the
defendant’s statement admissible at trial. Id. at 651. “[T]he
need for answers to questions in a situation posing a threat to the
public safety,” the Court said, “outweighs the need for the
prophylactic rule protecting the Fifth Amendment’s privilege
 5

against self-incrimination.” Id. at 657. Hence, Miranda should
not apply to situations “in which police officers ask questions
reasonably prompted by a concern for the public safety,” id. at
656, or for the safety of the arresting officers, id. at 658-59. In
Dickerson v. United States, the Court confirmed that the public
safety exception to Miranda is “as much a normal part of
constitutional law as the original decision.” 530 U.S. 428, 441
(2000).

To date, this circuit has had only one occasion to address
the exception. In United States v. Brown, police officers who
apprehended a defendant moments after he robbed a bank asked
him about the location of the gun he had used during the
robbery. 449 F.3d 154, 159 (D.C. Cir. 2006), abrogated in part
on other grounds by Dean v. United States, 129 S. Ct. 1849
(2009). Although the officers had not read Brown his rights, we
held that their “inquiries f[e]ll squarely within the public-safety
exception to Miranda v. Arizona, recognized by the Supreme
Court in New York v. Quarles.” Id. (citations omitted).

Based on the totality of the circumstances that confronted
Deputy Marshal Cyphers when he asked Jones whether he had
“anything on” him, we conclude that Cyphers’ question fell
squarely within the public safety exception as well. See United
States v. Reyes, 353 F.3d 148, 152 (2d Cir. 2003) (describing the
public safety exception as “‘a function of the facts of cases so
various that no template is likely to produce sounder results than
examining the totality of the circumstances in a given case’”
(quoting United States v. Banks, 540 U.S. 31, 36 (2003))).
Before Cyphers entered the Clay Terrace area, he knew that
Jones was wanted for murder while armed, that he could well be
in possession of two firearms, and that he had previously been
convicted of gun and drug offenses. Mot. Hr’g Tr. at 5-7.
Cyphers testified that Clay Terrace was known as a dangerous
drug market, and that “[f]irearms are used in the drug trade as
 6

protection and coercion.” Id. at 6. Indeed, the Marshals Service
dispatched twenty marshals to arrest Jones specifically because
of his criminal record, the severity of the crime for which he was
sought, and the dangerous nature of the Clay Terrace area. Id.
at 30. Moreover, once Cyphers made eye contact with Jones,
several factors further heightened the threat to public safety:
Jones led Cyphers on a chase in a crowded area; Cyphers heard
a gunshot fired during the pursuit; the stairwell where Cyphers
apprehended Jones was dimly lit; children had been present in
the stairwell only moments earlier; Jones was wearing a bulky
jacket that could conceal a weapon; and Cyphers had not yet
been able to handcuff Jones when he asked whether Jones had
anything on him.

We need not assess the weight of each of these individual
factors, as in combination they clearly establish that Cyphers’
question was “reasonably prompted by a concern for the public
safety.” Quarles, 467 U.S. at 656. Jones maintains that “no
Court has gone so far as the district court did” in applying the
public safety exception, Appellant’s Br. 8, but that is plainly
incorrect. Without necessarily endorsing them, we note that
decisions in which other circuits have found the exception
satisfied have emphasized the following factors, among others:
the defendant’s prior criminal record, see United States v.
Everman, 528 F.3d 570, 572-73 (8th Cir. 2008); United States
v. Coleman, No. 97-4078, 1999 WL 147262, at *2 (4th Cir. Mar.
18, 1999); the defendant’s drug dealing, see United States v.
Estrada, 430 F.3d 606, 613 (2d Cir. 2005); United States v.
Edwards, 885 F.2d 377, 384 (7th Cir. 1989); the fact that the
defendant was not yet handcuffed, see Reyes, 353 F.3d at 154;
and the dangerous nature of the neighborhood where the
defendant was arrested, see United States v. Brady, 819 F.2d
884, 888 (9th Cir. 1987). The instant case includes all of these
factors, as well as the others noted in the preceding paragraph.
 7

Jones raises two specific objections to the application of the
public safety exception in this case. First, he argues that there
was “no objectively reasonable need to protect either the public
or the officer from immediate danger” because the murder for
which he was wanted had taken place six weeks earlier,
rendering it “not reasonable to believe that . . . Jones would still
be in possession of both firearms.” Appellant’s Br. 10. We see
nothing unreasonable about an officer worrying that a person
who committed a murder just six weeks before, and who had a
previous conviction for a firearm offense, would be in the habit
of carrying a weapon. In any event, this is just one factor among
the many that, in their totality, warrant a finding that the public
safety exception applies here.

Second, Jones claims that Cyphers’ question was “designed
to elicit testimonial evidence” rather than to address safety
concerns. Id. at 11. Jones bases this argument on Cyphers’
testimony during the suppression hearing that he chose the
words, “do you have anything on you?,” because “[i]f you go
into specifics, then they give you a specific answer. If you keep
it general, then they usually tell you what they have.” Mot. Hr’g
Tr. at 12-13. But Jones’ argument fails in light of the Supreme
Court’s instruction that “the availability of th[e] exception does
not depend upon the motivation of the individual officers
involved.” Quarles, 467 U.S. at 656. As the Court explained,
“[i]n a kaleidoscopic situation such as the one confronting these
officers, where spontaneity rather than adherence to a police
manual is necessarily the order of the day, the application of the
exception . . . should not be made to depend on post hoc findings
at a suppression hearing concerning the subjective motivation of
the arresting officer.” Id. The Court recognized that
“[u]ndoubtedly most police officers . . . would act out of a host
of different, instinctive, and largely unverifiable motives -- their
own safety, the safety of others, and perhaps as well the desire
to obtain incriminating evidence from the suspect.” Id. The
 8

Court trusted that officers would “distinguish almost
instinctively between questions necessary to secure their own
safety or the safety of the public and questions designed solely
to elicit testimonial evidence from a suspect.” Id. at 658-59
(emphasis added). So do we.

Furthermore, Cyphers’ question does not appear to have
been crafted solely to obtain testimonial evidence. In fact,
Cyphers made it clear that he phrased the question generally in
order to elicit whether Jones had any weapon, rather than a
specific weapon like a gun. Mot. Hr’g Tr. at 12-13 (testimony
by Cyphers that his question was intended to find out whether
Jones had “anything that can hurt me . . . anything at all”). As
the Second Circuit has held, “a question need not be posed as
narrowly as possible, because precision crafting cannot be
expected in the circumstances of a tense and dangerous arrest.”
Estrada, 430 F.3d at 612 (internal quotation marks omitted); see
also United States v. Williams, 181 F.3d 945, 954 n.13 (8th Cir.
1999). Moreover, Cyphers’ actions bolster his testimony that
his query related to safety concerns: he asked the question
within 30 seconds of apprehending Jones, and he did not follow
up with more questions. See Quarles, 467 U.S. at 659
(explaining that the officer clearly recognized the distinction
between safety-related questions and investigatory questions
because he had “asked only the question necessary to locate the
missing gun before advising [the defendant] of his rights”);
Reyes, 353 F.3d at 154-55 (noting the significance of the
“arresting officer’s disinclination to exploit the situation” by
asking further questions); United States v. Carrillo, 16 F.3d
1046, 1050 (9th Cir. 1994) (emphasizing the officer’s
“deliberate refusal” to ask further questions).

Finally, Jones reminds us that “the public safety exception
is just that -- an exception.” Appellant’s Br. 10. He is plainly
correct about that. See Quarles, 467 U.S. at 658 (characterizing
 9

the exception as “narrow”). We must therefore take care that the
exception not be applied so routinely as to swallow the rule. Cf.
Estrada, 430 F.3d at 613-14 (warning that the exception “must
not ‘be distorted into a per se rule as to questioning people in
custody on narcotics charges,’” and emphasizing “that the
exception will apply only where there are sufficient indicia
supporting an objectively reasonable need to protect the police
or the public from immediate harm” (quoting Reyes, 353 F.3d at
155)). But although Quarles was decided a quarter century ago,
this is only the second time we have reviewed a case in which
the government has relied on the public safety exception. Our
decision today holds only that, based on the totality of the
circumstances in this case, Cyphers’ single question was
“reasonably prompted by a concern for the public safety,”
Quarles, 467 U.S. at 656, and therefore fell within the
exception.

III

Jones’ second contention is that he is entitled to a new trial
because the government disclosed to the jury that he was
arrested for murder. The district court had ruled that the nature
of the charge upon which the warrant was based was
inadmissible because its prejudicial effect outweighed its
probative value. Jones maintains that, despite this ruling, the
government showed the jury an unredacted Drug Enforcement
Administration (DEA) form -- a “DEA-7” -- that specified that
Jones was arrested pursuant to a homicide warrant. Jones
concedes that the DEA-7 was not available to the jury during its
deliberations, Oral Arg. Recording at 9:06-10, but he insists that
the government inadvertently displayed it to the jurors on a
projection screen for a few seconds during the testimony of a
government witness.
 10

The parties disagree on the standard that governs our review
of this claim. Jones argues that we must evaluate it under the
harmless error standard. The government, by contrast, contends
that plain error review applies because Jones failed to object
sufficiently at trial. See generally United States v. Coumaris,
399 F.3d 343, 347 (D.C. Cir. 2005) (describing the differences
between harmless and plain error review).

We need not resolve this dispute because Jones has not
established that the jury ever saw the DEA-7. Regardless of
which standard of review applies, an appellant bears the initial
burden of showing that the events allegedly constituting error
did, in fact, occur. See, e.g., Stockton v. Virginia, 852 F.2d 740,
743 (4th Cir. 1988) (explaining that a defendant who alleged
that jurors engaged in unauthorized communications with third
parties bore the burden of establishing “that an unauthorized
contact was made”); Anderson v. Acad. Sch. Dist., 122 Fed.
Appx. 912, 914 (10th Cir. 2004) (“The appellant bears the
burden of providing this court with the materials necessary to
establish that error occurred in the district court.”); see also
Sherman v. Smith, 89 F.3d 1134, 1155 (4th Cir. 1996) (Motz, J.,
dissenting on other grounds) (observing that a defendant who
claimed that a juror made an unauthorized visit to the crime
scene “bore the initial burden of proving that the site visit
occurred”). In most cases, the burden will be met easily and
without explicit discussion because the transcript will reflect --
or the parties will not dispute -- what happened at trial. But
when, as here, a factual dispute exists, it is the appellant’s
burden to show that the events allegedly constituting error
actually took place.

The DEA-7 is a one-page form that was included as part of
a three-page document labeled “Government Exhibit 2A.” The
three pages of Exhibit 2A were, in consecutive order: (1) a DEA
laboratory report analyzing the drugs; (2) photographs of the
 11

analyzed drugs; and (3) the DEA-7. R. Material for Appellee
Tab A at 1-3. A DEA-7 is a “report of drug property collected”
by the police, id. at 3, and is filled out by the seizing officer for
transmission to the DEA laboratory. In this case, the DEA-7
contained the following statement: “On August 10th 2006,
members of the Metropolitan Police Department arrested the
above named Defendant for HOMICIDE (Arrest Warrant
#2006CRW001978).” Id. This reference to the homicide
warrant appeared only on the DEA-7 and not on the other two
pages of the exhibit. Id. at 1-3.

Although the prosecutor used Exhibit 2A when questioning
an expert witness and repeatedly described it as “the DEA-7,” it
is clear from the transcript that he used the term as shorthand to
refer to the entire three-page document and only displayed the
first page. See, e.g., Trial Tr. 387 (Jan. 23, 2007) (“Do you see
on your monitor . . . the front page of the DEA-7?”) (emphasis
added). This is also clear from the testimony of the witness,
who described what he was seeing on the screen as a “certified
report of controlled substance analysis,” which was the
laboratory report included as the first page of Exhibit 2A. Id. at
388. There is no evidence that the last page of the exhibit -- the
DEA-7 itself -- was ever displayed to the jurors.

Jones’ attorney did interrupt the testimony regarding
Exhibit 2A and stated that the prosecutor “ha[d] the wrong side
on there.” Id. (emphasis added). The most natural reading of
the attorney’s comment is that the back side of the first page of
Exhibit 2A -- the laboratory report analyzing the drugs -- was on
the screen. Had the DEA-7 itself been displayed, the attorney
would have stated that the wrong page was on the monitor.
Indeed, the government clarified during a bench conference that
the prosecutor “didn’t use the ‘7’” when questioning the witness.
Id. at 389. At the end of the conference, the court confirmed
that “[w]hat we have on the screen is a laboratory report itself”
 12

-- which, again, was the first page of Exhibit 2A. Id. And after
the prosecution rested, the court stated there was no “need to
worry about [Exhibit 2A] going back” with the jury because the
DEA-7 indicating the arrest warrant charge was not “part of the
evidence.” Id. at 426-27.

At oral argument, Jones’ appellate counsel stated that the
transcript is “at best . . . confusing,” and that it is “really not
clear what was on the screen [in front of the jurors].” Oral Arg.
Recording at 9:41-47. Even if counsel were correct, the most
that can be said is that the issue is unclear, in which case Jones’
appeal still falls short because he cannot satisfy his burden of
showing that the act he describes as error actually occurred.

IV

After Jones was sentenced, the U.S. Sentencing
Commission “lower[ed] the Sentencing Guidelines ranges for
certain categories of offenses involving crack cocaine and
permit[ted] district courts to apply the lower ranges
retroactively.” United States v. Pettiford, 517 F.3d 584, 594
(D.C. Cir. 2008) (citing Notice of Final Action Regarding
Amendments to Policy Statement § 1B1.10, Effective March 3,
2008, 73 Fed. Reg. 217 (Jan. 2, 2008), and Notice of Submission
to Congress of Amendments to the Sentencing Guidelines, 72
Fed. Reg. 28,558 (May 21, 2007)). Jones asks us to remand his
case to the district court so that he can request a lower sentence
based on the amended Guidelines. The government agrees that
Jones may petition the district court for a reduced sentence, but
it contends that “[t]he proper procedural mechanism” under
these circumstances is for us simply to affirm and leave it to
Jones to file a petition with the district court pursuant to 18
U.S.C. § 3582(c)(2). Appellee’s Br. 30 n.25. That section
provides:
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[I]n the case of a defendant who has been sentenced to
a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 944(o), upon
motion of the defendant or the Director of the Bureau
of Prisons, or on its own motion, the court may reduce
the term of imprisonment, after considering the factors
set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.

18 U.S.C. § 3582(c)(2).

Both Jones and the government agree that Jones will be
entitled to ask the district court for a reduced sentence under
§ 3582(c)(2) regardless of which course we follow, and both
agree that no collateral consequences will attend our decision.
Oral Arg. Recording at 13:27-32, 24:53-25:12; see also
Pettiford, 517 F.3d at 594.1 Curiously, this dispute has
occasioned a circuit split. Nearly all courts of appeals that have
considered the issue have decided to remand to save the
defendant the “additional step” of petitioning the district court
for a sentencing modification. United States v. Wales, 977 F.2d
1323, 1328 n.3 (9th Cir. 1992); see United States v. Ursery, 109
F.3d 1129, 1137-38 (6th Cir. 1997); United States v. Vazquez, 53
F.3d 1216, 1227-28 (11th Cir. 1995); United States v. Marcello,
13 F.3d 752, 756 n.3 (3d Cir. 1994); United States v. Coohey, 11
F.3d 97, 101 & n.3 (8th Cir. 1993); United States v. Connell,

1
In Pettiford, we declined a defendant’s request to remand. 517
F.3d at 594. But we did so in that case because -- unlike here -- the
effective date of the Guidelines amendment had not yet arrived, and
the defendant therefore was not yet entitled to request a lower
sentence.
 14

960 F.2d 191, 197 n.10 (1st Cir. 1992). The Fourth Circuit, by
contrast, has simply affirmed “without prejudice to [the
defendant’s] right to pursue . . . relief in the sentencing court”
under § 3582(c)(2). United States v. Brewer, 520 F.3d 367, 373
(4th Cir. 2008). Other than the potential time savings, no circuit
has articulated a substantive difference between these two
options with respect to the relief available to a defendant.

We join the majority of our sister circuits and remand to
give Jones an opportunity to request a reduced sentence. This
course has a small advantage in terms of administrative
efficiency, as it will put the issue in front of the sentencing court
most directly and expeditiously. Whether to grant a reduction
remains within the discretion of the district court. See 18 U.S.C.
§ 3582(c)(2) (providing that the court “may reduce the term of
imprisonment” (emphasis added)); Ursery, 109 F.3d at 1137-38.

V

For the foregoing reasons, we affirm Jones’ convictions and
remand the case to the district court.

Affirmed and remanded.